Working together, governments, the private sector and regional bodies can solve the infrastructure problems hobbing the growth of the mining sector in Africa. Photo by Emmanuel Croset/AFP
Anglo American, Exxaro, BHP Billiton and South32 are among a slew of coal mining giants facing class-action suits in the Johannesburg High Court in which it is alleged that scores of miners contracted incurable lung diseases while working in local mines.
Public interest law firm Richard Spoor Inc Attorneys (RSI) has filed four applications on behalf of miners and their families for certification of classes to sue for damages more than 35 mining companies, including Patrice Motsepe’s African Rainbow Minerals (ARM), Thungela, Glencore, and their subsidiaries.
This after embarking on intense research that has involved tracking thousands of miners and their families over the past five years.
RSI associate Chloe Hoffman said on Thursday that most of the mining houses have filed notices to oppose the legal action — although they declined to provide detailed comment or confirmation to the Mail & Guardian this week.
Hoffman said the certification applications follow the landmark class-action settlement agreement RSI was able to broker in 2018 for harmed gold mine workers in the case of Nkala and Others vs Harmony Gold Mining Company Limited and Others.
“In that case, gold miners and their relatives received compensation for developing silicosis due to work-related exposure to silica dust in gold mining operations.
“We began working on the coal class actions shortly after this success in 2018 but, given the magnitude of the groundwork that goes into launching a class action, let alone four, it was only in 2023 that the matters were ripe for launching,” Hoffman said.
She said RSI and the Southern African Catholic Bishops’ Conference had done a comprehensive investigation into working conditions in the coal-mining industry before filing court papers.
They interviewed mine workers suffering from coal-mine dust lung disease, such as pneumoconiosis and chronic obstructive pulmonary disease (COPD), due to exposure to coal-mine dust in mines.
COPD is a chronic lung disease, characterised by breathing difficulty and airflow limitations. Both pneumoconiosis and COPD caused by coal dust are preventable diseases.
“The lead-up to the launching of these applications includes community outreach across South Africa and in neighbouring countries, numerous rounds of consultations with thousands of mineworkers across South Africa, and in neighbouring countries, and the medical testing of these mineworkers.
“We have relied heavily on the Nkala matter to pave the way for these coal class actions.”
Hoffman said it was important to launch the matters now as many of the large mining companies, such as South32, are withdrawing from the coal industry in South Africa, which could seriously jeopardise the miners’ claims, and some are refocusing on greener energies, which leads to the disposal of coal mine assets.
“RSI will consider settlement with the respondent mining companies. This is what happened in the Nkala matter,” Hoffman said.
“When dealing with class actions … the settlement agreement is reached on a class-wide basis. It is not only for the benefit of the named applicants.
“It is important to consider, however, that a settlement usually culminates in a compromised position for the class but, given how serious these illnesses are, we do not have time on our side and a settlement usually ends up being in their best interests.”
One of the main applicants, Langutani Elias Zitha, who worked at a mine owned by Exxaro between 1992 and 2014, has been diagnosed with pneumoconiosis, which he said had significantly affected his life.
“I cannot exercise. I am breathless when walking quickly or at an incline. I wake up from coughing and wheezing. When I cough, I often bring up phlegm.
“My health is very bad. I am unable to perform odd jobs. I constantly feel pain. I can feel that I am deteriorating,” he said.
Applicant Ntombi Mahlangu, who worked at Anglo’s Goedehoop and Greenside coal mines between 2002 and 2008, was diagnosed with coal-mine dust lung disease in May.
“I was in good health for the duration of my employment at the mines. My health began to deteriorate in recent years when I began to suffer from chest pains, coughing and sneezing,” Ntombi said.
“My health has not returned to normal, despite my attempts at maintaining a healthy lifestyle.
“My chest has become very heavy and the pains have worsened. I cough and wheeze a lot. I am not on any professional medical treatment; I rely on over-the-counter medication to ease the coughing and sneezing.”
Hoffman explained a class action begins with a certification application being made to the court wherein the applicants request permission to deal with the dispute on the basis of a class action, as opposed to individual trials or smaller group actions, which are limited to specified mineworkers.
Once certified, the class action is launched, the class’s claim for compensation is traversed, and evidence is led.
“At present, we are dealing with the certification applications against each of the mining companies.
“On 31 January 2024, the parties had a joint case-management meeting in which we agreed to deadlines for the exchange of pleadings in the certification applications,” Hoffman said.
These dates run well into this year and a hearing date for the certification applications is only likely next year, she said.
“At present, the vast majority of the respondents have opposed the certification applications and we await their answering affidavits wherein they will explain why they do not believe that the class-action mechanism is the appropriate way to deal with these disputes.
“We view this as nothing more than time wasting,” Hoffman said.
Most of the mining firms contacted this week said they were considering the court application but declined to comment in any detail.
Anglo American said it was aware that RSI had filed legal action on behalf of former coal miners.
“We will study its content and consider our position,” it said.
BHP Billiton said “the detail of the application is under consideration but, as this is an ongoing legal matter, we will not be commenting further at this time.”
Glencore declined to comment and ARM had not responded to questions at the time of publication.
Exxaro spokesperson Ling-Ling Mothapo said the company had been served the application to certify class action for damages against Exxaro and three of its subsidiaries, as well as 14 other respondents.
“We are currently reviewing the application and obtaining legal advice on the appropriate course of action. We will fully cooperate with the legal process and remain dedicated to transparency and keeping the market updated during these legal proceedings,” she said.
A spokesperson for South32 said “the matter is currently being considered by the business” but declined to comment further.
Seriti said in a statement the matter was still in its “very early stages” and that it would file court papers later this year.
“Seriti is opposing the matter and will make a further announcement once there is greater clarity on the way forward.
“A decision in a case management meeting last month before Deputy Judge President Roland Sutherland requires that we submit an answering affidavit by 2 September this year,” it said.